Chilcot Inquiry’s effects on the International Criminal Court

Eventually, after a seven year wait, the results of the Iraq inquiry, known as Chilcot Inquiry, were published on 6 July. Sir John Chilcot headed a committee announced by Prime Minister Gordon Brown in July 2009. The committee was responsible for determining what led to the involvement in the Iraq war. The UK was a member of the United States-led coalition that invaded Iraq in 2003. The invasion toppled the government of Saddam Hussein, but then an insurgency emerged to oppose the occupying forces in the post-invasion era.

The 12-volume report discloses and circulates valuable information about the circumstances in which the government of the UK and its then prime minister, Tony Blair, came to the conclusion that they should cooperate with the US in invading Iraq. These findings and conclusions may lead to considerable legal implications, including calls for the accountability of those who were responsible for triggering the war.

Some of the key points from the report are as follows: the military intervention in Iraq was not the “last resort”, but the UK chose to join the invasion before peaceful options had been exhausted; Blair deliberately exaggerated the threat posed by Saddam; the decision to invade was made in unsatisfactory circumstances; there was no imminent threat from Saddam Hussein; Britain’s intelligence agencies produced flawed information; Blair ignored warnings on what would happen in Iraq after invasion and did not take into account the probable consequences of the invasion and the government had no post-invasion strategy.

The publication of the Chilcot inquiry has led to a visible effect: the rise in demands for prosecution of Tony Blair for his role in taking part from, in particular, the family members of the British forces who were killed in the Iraq war. The inquiry does not conclude that the Iraq war was illegal because that is something that should be determined by a judicial body, but it casts wide doubt on the legality and legitimacy of the war. This finding backs the victims’ arguments for the prosecution of those who triggered the bloody war.

International criminal implications

The effect of the inquiry is not limited to the domestic prosecution of warmongers. The inquiry has some implications in the international criminal justice system too. Indeed, even before the inquiry was released, it had triggered debates and challenges in the international sphere. On 2 July, The Telegraph published a challenging article, claiming that “prosecutors at the International Criminal Court will examine the Chilcot report for evidence of abuse and torture by British soldiers but have already ruled out putting Tony Blair on trial for war crimes”.

The Telegraph based its claim on an official statement received by the newspaper from the Court. By doing some interviews with the British victims of the Iraq war, the Telegraph concluded that “the decision has outraged families of troops killed in Iraq who blame Mr Blair for engineering the war”. The article was widely disseminated.

It led to the instant reaction by the prosecutor of the International Criminal Court (the ICC). Fatou Bensouda issued a statement on 4 July in order to correct the assertions contained in article published by The Telegraph. In the statement, the prosecutor insisted that her office “has not taken a position with respect to the Chilcot Report” because “the contents of which are yet to be released and are unknown to us at this stage”. However, the Prosecutor of the Court made it clear that the jurisdiction of the Court over the situation in Iraq is limited to the war crimes rather than the crime of aggression.

War crimes vs. crime of aggression

The difference between war crimes and the crime of aggression resembles the distinction between jus ad bellum and jus in bello. The former refers to the conditions under which States may resort to war or to the use of armed force in general, but the latter regulates the conduct of parties engaged in an armed conflict. In other words, jus ad bellum asks why and jus in bello deals with the how question. War crimes criminalise behaviour during an armed conflict, irrespective of its legitimacy and legality, which is proscribed by humanitarian law. They aim to minimise suffering in armed conflicts by safeguarding the basic rights of those who are involved in a war or affected by it.

On the contrary, the crime of aggression deals with the roots of a war and addresses the time prior to a war. Aggression criminalises the launching and planning of a war that is illegal and illegitimate. Use of force is forbidden as a rule. Violation of this rule without justification is equal to commission of the crime of aggression. War crimes and the crime of aggression do not have a logical relation. War crimes may take place in a legal and just war, while an unjust war does not necessarily imply war crimes.

Rome Statute

The Rome Statute has recognised the crime of aggression as one of crimes within the Court’s jurisdiction. Nonetheless, the jurisdiction of the Court over this crime is dormant. The Court will only be able to exercise its jurisdiction over the crime after 1 January 2017, when a decision is to made by States Parties to activate the jurisdiction. Owing to the applicability of the legality principle, even if the Court is authorised to investigate the crime of aggression after 2017, its authority is not retroactive. Therefore, as the prosecutor in her statement insisted: “the specific question of the legality of the decision to resort to the use of force in Iraq in 2003 – or elsewhere – does not fall within the legal mandate of the Court, and hence, is not within the scope of its preliminary examination”.

Although it sounds that the Chilcot report is not relevant to the current examination and future investigations of the Court, the prosecutor’s statement repeated one of the prosecutorial policies that has some implications for the Court’s activities: the Court “will prosecute those most responsible for the commission of these serious crimes”. In other words, the prosecutor in its activities pursues the political and military leaders and commanders instead of foot soldiers.

Preliminary examination

The ICC is currently conducting a preliminary examination into the situation in Iraq. The preliminary examination is a process in which the prosecutor of the Court determines whether there is a reasonable basis to believe that one or more crimes falling within the jurisdiction of the Court – i.e. war crimes, crimes against humanity and genocide – has been committed on the territory of a State Party to the Rome Statute or by a national of one of those states. If the requirement of jurisdiction is satisfied, then the prosecutor needs to determine if the situation in question is admissible.

The admissibility requirement means that each situation of crisis should be of sufficient gravity to warrant the Court’s intervention. If it is, then it should be found that no other jurisdiction has dealt with the situation. In other words, based on the complementarity rule, only if national jurisdictions are inactive or unable or unwilling to exercise their jurisdictions over a situation, will the Court step in.

The situation in Iraq was brought before the prosecutor of the Court in 2006 for the first time. After receiving a large number of communications about crimes committed by the occupying forces in Iraq, the former prosecutor of the Court issued a response to clarify his status about the situation in Iraq. In his response, Ocampo admitted that some underlying criminal acts constituting war crimes in the sense of the Rome Statute had been committed by British forces, in particular the torture of Iraqi detainees. In spite of the satisfaction of the jurisdiction requirement, the prosecutor did not believe that the situation was admissible because of the lack of gravity.

All ICC crimes are grave in nature, but the gravity requirement is an extra threshold to prevent the Court from dealing with all cases and only deal with the gravest situations and cases. In the opinion of the then prosecutor, the number of victims in the situation in Iraq was too small to warrant the Court’s intervention. This decision based on the prosecutor’s misinterpretation of the gravity requirement came under strong criticism. This led the new prosecutor to reopen the preliminary examination into the situation in Iraq in 2014, based on new information received by her office.

Implications of Chilcot Inquiry

The Chilcot Inquiry could have two implications for the ICC’s investigation into the situation in Iraq. Firstly, the inquiry itself and the Telegraph article and its ensuing reactions could increase pressure on the prosecutor to initiate an investigation into the crimes committed by the British forces in Iraq if the Statutory requirements are met. Indeed, public opinion now is demanding that the Court intervene in the situation in Iraq in order to bring to justice those responsible for crimes committed in the context of a war that does not seem legitimate.

Public opinion is a key factor in the gravity assessment to determine if a situation or case is admissible. The pre-trial chamber of the Court in the context of the situation of the Turkish ship Mavi Marmara, for instance, insisted that when a situation is of concern to the international community, the Court had to take a stance.

Secondly, although the Chilcot inquiry deals mainly with the roots of the Iraq war, its findings could pave the way for prosecuting Tony Blair. As mentioned earlier, the Office of the Prosecutor focuses on those who bear the greatest responsibility. As for the war crimes committed by the British forces, one of the ICC’s criminal liability modes is command responsibility. According to this mode of liability, political leaders who know or should have known about the consequences of the behaviour of forces under their control are responsible for the crimes committed by those forces, even if they did not order them.

The Iraq inquiry proves that the UK leaders did not pay attention to the consequences of the invasion in the post-Saddam era, even though they received warnings. This could constitute an underlying element of command responsibility of the leaders who triggered the war without having a strategy for Iraq and their forces after war.

Lead image: Sir John Chilcot presenting the results of the Iraq inquiry in London (Photo: Dan Kitwood/AFP)

Mohammad Hadi Zakerhossein holds a master in criminal law from Tehran University. He conducted his PhD research at Tilburg University.

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